California Criminal Lawyer Blog

On April 29, 2008 the Public Safety Committee of the California State Assembly will conduct hearings on proposed legislation intended to gut the rights of criminal defendants to obtain police officer misconduct information hidden in their personnel files.

Below is my letter to Assemblyman Solorio in opposition to that legislation.

April 5, 2008

Assembly Member Jose Solorio
Public Safety Committee of the California Assembly
State Capitol
1020 N Street, #111
Sacramento, California 95814

RE: AB 2377 - Custodial Records; personnel records - OPPOSE

Dear Assemblyman Solorio:

I am a San Diego criminal defense attorney and civil rights litigator. I urge you to oppose Assembly Bill 2377.

I write to remind you of how Evidence Code sec. 1043 et seq. came to be. As time goes on our memories of the vast and widespread misconduct in Los Angeles which ultimately prompted such important and necessary legislative action fades. I am here to remind you because history repeats itself.

The following is an excerpt from “Firing a Federal Prosecutor - The Isla Vista Connection" by Bob Potter, coauthor of "The Campus by the Sea Where the Bank Burned Down," an official account of the 1970 riots in Isla Vista. This give you a short synopsis of the serious misconduct perpetrate by then Los Angeles County Sheriff Peter Pitchess, and how he and his cohorts were able to destroy a fine federal prosecutor and quash all allegations of misconduct. We cannot let this happen again.

THE PRECURSOR TO THE PITCHESS STATUTE

“Robert L. Meyer was appointed U.S. Attorney for Los Angeles by President Nixon in May 1970. An active Republican, former campaign manager for U.S. Senator George Murphy, and nominee for the state Assembly, he was immediately faced with several explosive and politically controversial cases involving civil rights violations and alleged police misconduct. These included the “mistake killing” of two Mexican nationals by Los Angeles police officers, the killing of L.A. Times newsman Ruben Salazar during a riot in conjunction with the Chicano Moratorium protests, and finally, widespread charges of gross misbehavior by L.A. County Sheriff’s officers during the June 1970 disorders in Isla Vista.

“Despite strong pressure from L.A.’s elected officials, including Mayor Sam Yorty, Sheriff Peter J. Pitchess, and Police Chief Edward M. Davis, Meyer’s office pursued these allegations aggressively, convening federal grand juries to investigate the charges. In March 1971, five Los Angeles police officers were indicted by the grand jury, including three on charges stemming from the “mistake killing,” one for abetting a burglary, and one for forcing a female suspect to disrobe. These indictments ignited a huge political furor. In Salazar’s case, a coroner’s inquest ruled the death a homicide, but the police officer escaped prosecution, and no indictments were issued.

“It was the Isla Vista cases, however, that brought about Meyer’s downfall. More than 400 reports of police misconduct—including beatings, break-ins, false arrests, and sexual molestation?—?had been collected from Isla Vista residents. In May 1971, indictments were returned by a federal grand jury in Los Angeles against an unnamed number of law enforcement officers, members of the L.A. County Sheriff’s Special Enforcement Branch, and the Santa Barbara County Sheriff’s Office. With the indictments still under seal, Pitchess, Yorty, and Chief Davis all spoke out, with the latter warning that “an ill wind is blowing from Isla Vista.” Sheriff Pitchess flew to Washington, D.C. and met on June 3 with Attorney General John Mitchell. Subsequently the indictments were quashed and never issued.

“In November 1971, Meyer was asked to resign by Assistant Attorney General L. Patrick Gray, acting on instructions from Attorney General Mitchell. “He told me they wanted my resignation, effective January 1,” Meyer recalled, “and that I could have it the easy way, or the hard way.” Meyer resigned his position and died of a heart attack a year later, at the age of 49. After leaving office, Meyer said he had been criticized as a “moderate” or “liberal,” rather than a “true conservative.” Many of his policies did not jibe with what his superiors wanted, but the big issue was “a philosophical area epitomized by the civil rights cases” (L.A. Times, Nov. 15, 1972).

“Despite all the evidence, the accused L.A. and Santa Barbara sheriffs’ officers were never prosecuted. Mitchell and Gray, for their part, would go on to become notorious figures in the Watergate scandal. Gray, briefly appointed J. Edgar Hoover’s successor at the FBI, was revealed to have destroyed evidence from Howard Hunt’s safe and was indicted for illegal break-ins, though he escaped conviction. Mitchell became the first U.S. Attorney General to be convicted of illegal activities and sent to prison.

“Their role in firing a fearless and nonpartisan U.S. attorney in Los Angeles is barely remembered today. But as we contemplate the current politicization of the attorney general’s office, it is worth remembering that quashing legitimate investigations is only a step away from instigating systematic injustice.”

RAMPARTS: HISTORY REPEATS ITSELF

It has been some 38 years since the massive police misconduct in Isla Vista was uncovered. But history repeats itself. Such misconduct was festering - again - in Los Angeles.

More than 200 lawsuits were filed in 2000 in Los Angeles by individuals alleging that they were "framed, shot or beaten by officers in the Rampart division's anti-gang unit."

The scandal involved the investigation of 82 incidents involving 50 officers and the reversal of more than 100 convictions tainted by police misconduct. Racial profiling, excessive force and the Rampart scandal caused the federal government in 2001 to impose a consent decree on the department mandating reforms.

Approximately 18 percent 200 lawsuits were dismissed. All in all, Los Angeles paid approximately $70 million in damages to the plaintiffs. The average settlement was $400,000 but 30 plaintiffs received $500,000 or more. (See Exhibit A, attached hereto, for additional information)

Taxpayers in Los Angeles might want to ask whether their tax money would be better spent reforming the police department rather than paying for officers' lawless conduct, or trying to protect them by making their personnel files more difficult to access.

SAN JOSE: HISTORY REPEATS ITSELF

Below is an article published by the San Jose Mercury News outlining the massive suits brought against another Ramparts-like situation occurring in that jurisdiction.

SANTA CLARA: HISTORY REPEATS ITSELF

In Santa Clara, the 2006-2007 Santa Clara Grand Jury reported that police misconduct was under reported as much as 50 percent by Internal Affairs (“IA”)as compared to reports reviewed by the Office of the Independent Police Auditor (“IPA”). They both got the same reports, but IA reported 50 percent less misconduct than the IPA. This strongly suggests that the police department’s own internal affairs department is complicit in sweeping misconduct under the rug. This is the quintessential “fox guarding the henhouse” example.

SAN DIEGO: A CESSPOOL OF MISCONDUCT

We have the same issues in San Diego as in Los Angeles and San Jose. The problem,
much of the time, is that prosecutors and judges protect law enforcement officers at all costs, just as they protected Peter Pitchess in Los Angeles in the 1970's.

Let me give you some examples.

A. I was a deputy public defender in 1992. I noticed over a period of just a week one officer arrested an unusually high number of people every night. I recall seeing five police DUI arrest reports on one night for this officer. But there was more. It looked like the officer had “whited out” the names of the suspects, and written new names in over the white out. The reports all looked essentially the same- the suspect usually was alleged to have “rolled” through an intersection in Mission Beach. But the suspect’s name was different from report to report. I reported this to my supervisor and heard nothing else.

In 2006 I saw that name again. History seemed to be repeating itself. To make a very long story short, I learned that a former city attorney prosecutor had gotten this police officer kicked off the DUI enforcement team. It seems that after the police department was satisfied that no one would be able to track this misconduct, they put him right back in the same neighborhood and he began falsifying police reports again.

What is shocking about this case is that the prosecutor who got this officer kicked off the DUI enforcement team for falsifying records is refusing to cooperate with me. He is a judge now. He never told any defense attorney that I know of about the officer falsifying reports. And now, some 14 years later, he has declined to assist me in my investigation which I take as tacitly trying to hide this officer’s continued misconduct from the defense bar.

Since I learned of this officer’s misconduct, numerous of his cases have been dismissed when defense attorneys caught him lying. We have been building up our own dossier of misconduct and sharing it because the courts are reluctant to provide us documents in this officer’s Pitchess file. I suspect this is because most of the judges run on a “Law Enforcement’s Choice” ticket for re-election. Granting pitchess motions bodes badly for re-election given the power of the police unions.

I am counsel on a Fourth District Court Appeal, Division One, case where a justice issued an Order to Show Cause why the Pitchess decision denying my request in that case should not be reversed. In short, the prosecution withheld evidence. The trial court, a former police officer, denied a very valid motion on a this rogue officer for no other reason than to protect him. But the Court of Appeal issued a stay of proceedings and demanded the City answer.

I’m still talking about the same police officer.

Another example of the prosecutors trying to protect this known rogue officer occurred when a prosecutor put him on the witness stand to lie. A Deputy City Attorney knew that defense counsel was going to call the officer’s sergeant to testify against the rogue officer in a suppression motion. Instead of just conceding that this rogue officer lied, the prosecutor put him on the stand. He lied. His sergeant testified and impeached the officer. The prosecutor put the rogue officer back on the witness stand to tell the judge that the sergeant was wrong. In short, this prosecutor suborned perjury. The judge granted the defense attorney’s motion and the case was dismissed based on the lack of this rogue officer’s credibility.

But the judge took no action against the prosecutor for putting on false testimony.

This rogue officer is still patrolling. He is still engaging in the same behavior. He’s out there tonight.

B. In 2000 another rogue officer from the DUI task force stopped a young Irish woman for “squealing” her wheels as she turned out of a driveway. The stress caused her to have an asthma attack. She asked the officer is she could use her inhaler. He said no. She repeated her requests continuously until she could stand it no longer. She reached into her pocket for her inhaler. The officer slammed her face into the cement, breaking her nose. The City paid out a hefty sum in damages after a civil rights case was filed. She was so terrified of this officer she moved to San Francisco.

Fast forward to 2007. A paraplegic is stopped by this same officer for allegedly making an illegal turn. The paraplegic was ordered out of the car. He told the officer he could not get out. The officer started yelling at him to get out. A passenger got the wheelchair out of the trunk. The paraplegic got himself into the wheelchair. The officer wheeled him to the rear of the patrol unit where he yelled, “Get out!” The paraplegic asked for accommodations under the Americans With Disabilities Act. He asked for a van. The office started yelling for him to get into the rear of the patrol unit. He could not. The officer hoisted him out of his chair and threw him longways into the back of the cruiser. Then the officer raced down the highway at speeds of more than 90 mph and slammed his brakes on from time to time so the paraplegic would slam into the rear of the passenger seat. Is a well known police abuse technique called the “Hollywood Screen Test.”

Once at the station, the officer yelled at the paraplegic to “get out.” Again, he said he could not. So, the officer grabbed onto the paraplegic’s ankles and pulled him out of the police cruiser, causing the man’s head to slam on the cement floor and bounce. He sustained a rotator cuff injury and a concussion.

The police report says that the paraplegic “walked with an unsteady gait.” The paraplegic wishes he could walk with any gait. But, he cannot walk at all.

I filed a Pitchess motion on this officer. I’ve done it many times. I know he has a massive file because I’ve had several judges provide me damning information from this file. What is shocking is that other judges have told me once they have reviewed the file that there is nothing discoverable in it. These judges lied about the empty contents of the file to assist the officer or the prosecution, not knowing I knew they were lying. That’s the power of the police unions.

After I filed the Pitchess motion in this case, and was denied the evidence I know exists therein, the city filed “resisting arrest” charges. They did that either to retaliate against the client for exercising his right to seek this discovery, or they waited to file this false charge until after the motion was denied to limit my showing of “good cause.” Now that I have filed another Pitchess motion, the city has accused me of forum shopping to find a judge who would grant the motion when, in fact, I am entitled by law to another motion give the new, false, allegations.

Why protect a cop who has cost the taxpayers money and who will do so again?

C. I represent a teenager, a former high school wrestler with no criminal record, who was brutally beaten and disabled by a rogue Chula Vista police officer. The City of Chula Vista has three lawyers defending the city and the officer. They actually claim it didn’t happen. The client is now disabled. We have evidence of the officer’s brutal history, and we have evidence of the officer lying to protect himself. I suspect the City of Chula Vista has spent more than $100,000 thus far trying to defend a rogue officer who they know has a habit of beating people.

D. Several weeks ago an off duty Oceanside police officer sat in his car in a parking lot and unloaded 5 measured rounds into the car occupied by a mother and her eight-year-old son. His window was shattered, indicating that he shot at the mother and child through his window. Any other person would have been arrested for attempted murder and bail would have been set at $1 million. Instead, this officer is on leave with pay. San Diego prosecutors have never seen a cop they wanted to prosecute. Every officer involved shooting is exonerated.

PROSECUTORS PROTECT POLICE OFFICERS

This leads me into a very frightening point: prosecutors suborn perjury and withhold evidence. Now, that is not to say all prosecutors do this. Many do, however. That is why the Oceanside officer who shot the mother and child is still at large. That is why the four rogue officers listed above are still working. That is why the Isla Vista indictments were quashed. That is why Ramparts misconduct festered for so long.

Take for example, how the law firm representing the Legal Defense Fund instructs prosecutors to destroy evidence. They suggest that since evidence of police officer misconduct can be removed from an officer’s personnel file after five years, prosecutors should not warehouse such documentation in their own offices. In other words, this firm suggests that prosecutors destroy evidence the accused has a constitutional right to obtain pursuant to Brady v. Maryland (1963) 373 U.S. 83, stating, “Thus, it is in the best interest of both officers and law enforcement agencies to have a mechanism for routine destruction of citizen complaints that are older than five years. (See Exhibit B, attached herewith)

The problem is that prosecutors cannot legally or ethically destroy Brady evidence. But this Santa Monica Law firm representing law enforcement agencies suggests that they should do this anyway.

POLICE OFFICERS ARE PUBLIC FIGURES; ALLEGATIONS OF MISCONDUCT WON’T HURT THEM

This brings me to another important point: why is the sponsor of this bill worried about frivolous complaints that might harm police officers? The Constitution is not concerned with police officers feelings. It is concerned with justice. Police officers wear body armor, are given psychological assessments, carry tasers, guns, batons and pepper spray. They are supposed to be tough.

As well stated in Imig v. Ferrar (1977) 70 Cal.App.3d 48, “We agree with Plaintiff that it is distressing and demoralizing for police officers to be subjected to false allegations of brutality, but that may be one of the crosses that a police officer must bear, in light of the power and deadly force the state places in his hands.”

This is because police officers have been held to be public officials for purposes of defamation claims. Gomes v. Fried (1982) 136 Cal. App. 3d 924, 932-934; see also McCoy v Hearst Corp. (1986) 42 Cal. 3d 835, 841, fn. 3). They are supposed to be able to withstanding scrutiny, even if it’s false.

FEDERAL COURTS WILL NEVER LIMIT PITCHESS DISCOVERY IN FEDERAL CASES

This proposed legislation may make in more difficult for individuals accused of crime to access police officer personnel files for a time. I submit, however, that California courts’ whittling away of the “good cause” requirement in the present statute is based on constitutional principles this legislature cannot legislate away.

For example, when I cross the street from state court to federal court, the rules completely change. Rule 26(b)(1) of the Federal Rules of Civil Procedure provides that parties may obtain discovery of any matter, not privileged, which is relevant to the subject matter of the pending action, including information reasonably calculated to lead to the discovery of admissible evidence.

In United States v. American Optical Co. 39 F.R.D. 580, 583, fn. 4 (N.D.Cal. 1966), the court noted that under the standard of relevance prescribed by Federal Rule of Civil Procedure 26(b), the court is not concerned with whether or not the documents will be admissible in evidence. The scope of discovery is much broader: "Thus, Rule 26(b) has been consistently interpreted as requiring 'relevancy to the subject matter' of the action rather than relevancy to the 'precise issues presented by the pleadings.'" Id.

Discovery rules are to be interpreted liberally. Hickman v. Taylor, 329 U.S. 495 (1974). The burden of showing the information sought is not relevant is on the party resisting disclosure. Kelly v. City of San Jose, 114 F.R.D. 653, 667-68 (N.D.Cal. 1987) Discovery should be ordered because the records are relevant to show the officer’s propensity to use excessive force and to show that supervisors had notice of the propensity but failed to take remedial steps.

There is not much in a police officer’s personnel file that is not discoverable in federal court. For example, in Soto v. City of Concord, 162 F.R.D. 603 (E.D.Cal. 1995), the following records were discoverable: employee appraisals, field operations divisional memo, times cards for dates of incident, training records, employee application, letters of commendation, employee performance appraisals, certificates of promotion, memo regarding interviews, service recognition, employee orientation, records of promotion, memo regarding change of assignment, employee supplemental information sheet, written reprimands.

Statements of interviews of persons having a role in or contact with a case are relevant. Internal affairs histories and statements are relevant, regardless of whether or not those officers are named as parties. Hampton v. City of San Diego, 147 F.R.D. 227, 229 Cal. 1993) Mental, psychological or physical conditions of officers are discoverable. Soto, supra, at P. 8 (citing Mueller V. Walker, 124 F.R.D. 654, 659 (D. Or. 1989).

In Renshaw v. Ravert, 82 F.R.D. 361, 363, (E.D.Pa., 1979), where plaintiffs sought information from police files of prior suits or disciplinary proceedings, the court declined to express a view concerning the admissibility of the information but held, relying on United States v. I.B.M., 66 F.R.D. 215, 218, (S.D.N.Y. 1974), that "discovery is to be considered relevant where there is any possibility that the information sought may be relevant to the subject matter of the action." [Emphasis in original.]

The court further held that matters affecting the credibility of a witness or matters that might be used in impeaching or cross-examining him at trial are discoverable. Renshaw, supra, at 363. Accord: United States v. Meyer, 398 F.2d 66, 72 (9th Cir., 1968).

Thus, not only is the internal investigation into the instant incident discoverable, evidence of other instances of conduct is discoverable because it is relevant to the subject matter of the litigation and is relevant on the issues of credibility, notice to the employer, ratification by the employer and the intent or motive of the officer.

It should be noted the privilege afforded by California Evidence Code Section 1040
has no application in federal actions. See, e.g., Kerr v. United States District Court, 511 F.2d 192, 197-198 (9th Cir.1975), affirmed 426 U.S. 394 (1976); Gill v. Manuel, 488 F.2d 799, 803 (9th Cir.1973); Miller v. Panucci, 141 F.R.D. 292, 297-299 (C.D.Cal. 1992).

In Youngblood v. Gates, 112 F.R.D. 342, 344 (C.D.Cal. 1985), the court also held that federal law controls the issue of the existence and scope of privilege in a federal question case. The Youngblood Court found that the plaintiffs' interest in disclosure outweighed law enforcement's interest in secrecy:

"First, the public has an interest in
assuring just and accurate adjudication of
disputes. Overindulgence in governmental
privileges might weaken public confidence
in the ability of the judicial system to do
justice where government is the defendant.

Second, the public has an interest in
preventing government malfeasance. Exposure
of past wrongdoings might inhibit future
abuses by government employees. [Citations
omitted.]" Youngblood, at p. 348.

In Kelly v. City of San Jose, 114 F.R.D. 653, 655 (N.D.Cal. 1987), the Court suggested that protective orders could be used to protect whatever interests the police departments may have in keeping evidence of its policies and tactics away from the general public. Id., at p. 666. See also, Soto v. City of Concord, 162 F.R.D. 603, 614-617 (N.D.Cal. 1995) and Hampton v. City of San Diego, 147 F.R.D. 227, 229-231 (S.D.Cal. 1993).

Now, this only makes Exhibit B more frightening, knowing that California lawyers are suggesting destruction of records I am entitled to access under federal law when I bring a federal civil rights claims.

THE LEGISLATION AT HAND

I digressed somewhat in order provide color and texture to the argument that the legislation at hand should be rejected. I presented the lengthy discussion above to remind you of the history of Pitchess, and that this severe problem of police misconduct is just as pervasive today as it was in the 1970's when this legislation was enacted.

If an attorney in every county were to compile a list of civil rights cases that either settled favorably on behalf of the plaintiff, or went to jury trial and won - and we published those findings - the public outcry would be deafening.

I ask you this: is there any evidence whatsoever that there is a widespread destruction of police officers’ reputations and careers as a result of the court’s many interpretations of the Pitchess statute over the years? I know the answer is a resounding “no.”

Then why make take the risk on more wrongful convictions to satisfy the political needs of the law enforcement unions?

I strongly urge that this committee vote against AB2377 for the reasons stated above.

Sincerely,

Mary Frances Prevost